KBL v Director-General Department of Justice and Attorney-General [2025] QCAT 277

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 353, s 360

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

Johnston v Carroll [2024] QSC 2

Oliver v Queensland Racing Integrity Commission [2017] QCAT 50

L Hailstone, Legal Officer, Department of Justice and Attorney-General

• [1] In January 2021, the applicant ('KBL' or 'Applicant') made an application to be issued with a working with children clearance, also known as a blue card. After considering that application, the Director, Blue Card Services (Screening Services) Department of Justice and Attorney-General ('Decision Maker') decided to issue KBL with a negative notice ('Negative Notice Decision'). That is, KBL was unsuccessful in obtaining a blue card. The reasons for the Negative Notice Decision were set out in an eleven-page document dated 28 June 2021 and which was sent to KBL ('Reasons Document').[1]
• [2] The Decision Maker was satisfied that issuing a blue card to KBL would not be in the best interests of children and young people. Central to the Negative Notice Decision was the Decision Maker's consideration of matters relating to KBL's criminal history. That criminal history was, in summary, that KBL was charged with the offence of choking suffocation strangulation (in a) domestic relationship ('Charge'). KBL was not convicted - the Charge was dismissed in the Cleveland Magistrates Court in January 2018.
• [3] By his July 2021 application to the Tribunal, KBL seeks a review of the Negative Notice Decision. The central contention set out in KBL's application for review is that his matter is not an exceptional case. To support this position, KBL contended in his application that the Decision Maker did not take into account relevant considerations in the exercise of power and, further that the Decision Maker took into account irrelevant considerations.
• [4] At the hearing of this matter and in post hearing written submissions the Applicant's position was modified. There was a change from an assertion of error by the Decision Maker to an emphasis on matters relevant to the assessment of whether KBL's case was exceptional. This shift of focus was appropriate. This is because the role of the Tribunal is to stand in the shoes of the Decision Maker to arrive at the correct and preferrable decision.[2] The Tribunal's jurisdiction is not predicated on an assertion that the Decision Maker has made an error.[3] The role of the Tribunal in determining a review matter such as this is addressed further below.
• [5] The ultimate issue for determination by the Tribunal in this matter, can be phrased in the form of a question - is KBL's case exceptional so that it would not be in the best interests of children for him to be issued with a working with children clearance?[4]
• [6] Before addressing this ultimate question, in the context of the evidence adduced before the Tribunal, it is appropriate to set out the legislative framework which governs the Tribunal in coming to an answer to this question.

• [7] The principal legislative enactments relevant to a review by this Tribunal of the Negative Notice Decision are the Working with Children (Risk Management and Screening) Act 2000 (Qld) ('WWC Act') - under which the Negative Notice Decision was made - and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') under which the Tribunal exercises its review jurisdiction.
• [8] The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons.[5]
• [9] The Negative Notice Decision is a 'chapter 8 reviewable decision' as that phrase is defined in s 353 of the WWC Act.
• [10] The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.[6] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[7] That is to say, this Tribunal must come to a decision on the evidence before it.
• [11] As to the evidence, the Tribunal is not bound by the rules of evidence or any practices or procedures applying to other Queensland courts of record other than to the extent the Tribunal adopts those rules, practices or procedures.[8] Nonetheless, those rules and practices do provide useful guidance for the Tribunal.
• [12] As mentioned above, it is not necessary for KBL to establish that the Decision Maker fell into error in either the process or the reasoning that gave rise to the decision. Further, there is no presumption that the decision under review was correct.[9]
• [13] In deciding this matter, this Tribunal has all the functions of the Decision Maker. So, the Tribunal is guided by the principles set out in the WWC Act.
• [14] Those principles are, in summary, that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.[10]
• [15] The WWC Act provides, as a starting point in this matter, that a person in the position of KBL, should be allowed to hold a blue card unless that person's situation is an 'exceptional case'. An exceptional case is one where the Tribunal, is satisfied that it would not be in the best interests of children for the applicant to be issued with a working with children clearance.[11]
• [16] The term exceptional case is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation.
• [17] Further, it is a term of common use in everyday language and the application of the concept of what constitutes an exceptional case should be unhampered by any special meaning or interpretation.[12]
• [18] In determining whether KBL's circumstances constitute an exceptional case an appropriate framework for consideration of the material before the Tribunal is to consider:

(a) The matters that the WWC Act mandates must be considered.[13]

(b) Any other matters that are relevant to the decision.[14]

This consideration must be conducted having regard to the principles for the administration of the WWC Act, summarised in [14] above, and any human rights relevant to the Tribunal's determination.

• [19] With respect to human rights relevant to the decision, the Tribunal is a 'public entity' and is therefore also required to comply with s 58 of the Human Rights Act 2019 (Qld) ('HRA'). Subject to some presently irrelevant exceptions, that section imposes two obligations on the Tribunal. They are the substantive obligation[15] not to make a decision in a way that is incompatible with human rights and the procedural obligation[16] not to fail to give proper consideration to a relevant human right in making a decision.[17]
• [20] The human rights that are potentially relevant to KBL include the right to privacy and reputation,[18] the right to a fair hearing,[19] and the right to take part in public life.[20] The human rights of children are also relevant to this review. Those rights relevantly include that every child has the right to 'the protection that is needed by the child, and is in the child's best interests, because of being a child.'[21]

• [21] Before outlining the evidence before the Tribunal, some introductory observations are apposite. A determination of whether an exceptional case exists can only be made after evaluating all the available evidence.[22] In this regard it is important to emphasise that a determination under s 221(2) of the WWC Act is an evaluative exercise rather than a fact-finding exercise.[23]
• [22] Thus, as the Appeal Tribunal has recently stated, "it is not productive to approach the question of whether the Tribunal is 'satisfied' from the viewpoint of an onus or standard of proof".[24]
• [23] In evaluating the evidence, it must be recognised that the 'ultimate question' of what is in the best interests of children involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and the potential future risks to children'.[25]
• [24] Whilst there can never be absolute certainty as to the future, speculation as to what might happen is, under the WWC Act, conditioned by having regard to the past. So, by mandating consideration of 'relevant information'[26] the WWC Act makes clear that past events provide guidance in addressing the ultimate question.
• [25] With this as background, what evidence was before the Tribunal?
• [26] The Director-General, Department of Justice and Attorney-General ('Respondent') placed before the Tribunal three documents or sets of documents. The first set of documents consisted of documents that were relevant to the Negative Notice Decision including the Reasons Document and related documents such as KBL's national police check report, police court briefs, a court transcript and documents related to KBL's blue card application.[27]
• [27] The second set of documents tendered by the Respondent consisted of documents that were provided as a result of notices to produce ('NTPs') issued by the Tribunal.[28] The NTPs were addressed to the Registrar of the Cleveland Magistrates Court and the Queensland Police. The documents produced pursuant to the NTPs were not before the Decision Maker at the time of the issue of the Negative Notice Decision. The NTP documents consisted of the police brief of evidence in relation to the police investigation that gave rise to the charge faced by KBL and related material together with documents held by the Magistrates Court that pertained to domestic violence ('DV') orders naming KBL as respondent and related documents. Finally, the Respondent provided to the Tribunal a set of submissions, prepared prior to the hearing of this matter, that addressed the statutory framework governing this hearing and a commentary on the material that had been filed with the Tribunal prior to the hearing.[29]
• [28] For KBL several documents were put before the Tribunal. These documents consisted of a statement by KBL setting out his 'life story',[30] an affidavit by KBL,[31] copies of two DV protection orders made in 2014 and 2016 that named KBL as the 'aggrieved',[32] an expert report being a Confidential Psychiatric Report dated 5 November 2022 by a Consultant Psychiatrist.[33] This report, dated 5 November 2022, was prepared following a psychiatric evaluation of KBL in October 2022. Prior to conducting this evaluation, the expert Consultant Psychiatrist had been briefed by KBL's solicitors with certain instructions and documents.[34]
• [29] KBL gave oral evidence at the hearing as did the Consultant Psychiatrist who prepared the November 2022 report.
• [30] Finally, post hearing written submissions were provided by both the Applicant and the Respondent.
• [31] Having regard to the exhibits and the oral evidence of the Applicant, certain facts are not in dispute between the parties or are apparent from uncontradicted evidence put before the Tribunal. These matters, for the purposes of s 226 of the WWC Act, include:

(a) That KBL's relevant criminal history consisted of the Charge (of choking suffocation strangulation domestic relationship).

(b) The conduct that gave rise to the Charge took place on 13 August 2017 and involved KBL and his domestic partner.

(c) The Charge falls within the definition of a serious and disqualifying offence as those terms are defined in the WWC Act.

(d) Although there is a dispute as to aspects of the factual matrix that gave rise to the Charge, certain matters are not in dispute or are from the uncontradicted evidence before the Tribunal. Namely that on 13 August 2017:

(i) KBL and his domestic partner had, during the afternoon, consumed 'a large amount of alcohol' at licensed premises in the vicinity of their joint residence.[35]

(ii) That around this time arguments between KBL and his domestic partner would often escalate when they had been drinking.[36]

(iii) After they returned to their residential dwelling from the licensed premises there was some physical contact between KBL and his domestic partner.

(iv) After the physical contact, KBL's domestic partner made a 000 call and, shortly after that call, members of both the Queensland Police Service and the Queensland Ambulance Service attended at their shared dwelling.

(e) A Temporary Protection Order was made in the Cleveland Magistrates Court on 14 August 2017 in which KBL was the 'respondent' and his domestic partner was named as the 'aggrieved'.[37]

(f) The Charge was dismissed in the Cleveland Magistrates Court in January 2018.[38]

• [32] In respect of s 228 of the WWC Act, there is further DV information that concerns KBL that is now before the Tribunal. A substantial portion of this information was produced as a result of the NTPs. The matters in relation to the DV information that are not in issue between the parties or are based on the uncontradicted evidence put before the Tribunal at the hearing are as follows:

(a) The events of 13 August 2017 that gave rise to the finalised charge was not the only DV incident involving KBL and his domestic partner. The Applicant's statement[39] and his post hearing written submissions dated 19 April 2024 refer, amongst other matters, to the following events:

(i) On 29 January 2014 a DV Protection Order was issued by the Cleveland Magistrates Court.[40] The applicant for this Order was a member of the Queensland Police Force, the 'respondent' to the Order was KBL's domestic partner and the 'aggrieved' was KBL.

(ii) On 4 February 2015 a further DV Protection Order was issued by the Cleveland Magistrates Court under which KBL was named as the 'respondent' and his domestic partner was named as the 'aggrieved'. This order expired on 4 August 2016.[41]

(iii) On 30 November 2016 a further DV Protection Order was issued by the Cleveland Magistrates Court. Again, the applicant for this order was a member of the Queensland Police Force, KBL's domestic partner was the 'respondent' and the 'aggrieved' was KBL.[42]

(iv) KBL was subsequently named as the respondent in three temporary orders issued between August and October 2017 before a final order was issued in January 2018. That final order expired in January 2023.[43]

• [33] The WWC Act, in ss 226 and 228, mandates that the Tribunal, as the decision maker, must consider certain matters in deciding whether KBL's case is exceptional.
• [34] Relevantly for this proceeding, the s 226 matters that the Tribunal must have regard to include those set out in s 226(2)(a). Most of the matters that the Tribunal must consider under this provision have been mentioned above including the absence of a conviction in respect of the Charge, the nature of the offence he was charged with and the time when the offence was alleged to have been committed.[44]
• [35] There are further matters under ss 226 and 228 of the WWC Act that must be considered by the Tribunal. As to s 226, insofar as these matters are not addressed in the preceding paragraph, they can be summarised as, firstly, consideration of the relevance of the Charge to employment, or carrying on a business, that may involve children[45] and, secondly, the broad requirement to consider 'anything else' relating to the alleged commission of the offence that the Tribunal reasonably considers to be relevant to an assessment of KBL.[46] As to s 228, which applies here as the relevant information is DV information, the matters that this Tribunal must have regard to are the circumstances of a DV order including the conditions imposed on the person by the order,[47] the circumstances and gravity of the behaviour or conduct, the length of time that has passed since the conduct, the relevance of the DV information to employment or carrying on business that involves or may involve children and 'anything else' relating to the DV information that the Tribunal reasonably believes is relevant to the assessment of KBL.[48]
• [36] As is appropriate for legislation that has, as its guiding principles, that (a) the welfare and best interests of children are paramount and (b) that every child is entitled to be cared for in a way that protects a child from harm and promotes the child's wellbeing[49] the 'anything else' provisions in ss 226 and 228 give the Tribunal the ability to consider a wide range of matters in coming to a determination. In addition, the Appeal Tribunal has stated that the prescribed matters should not be considered in isolation and that there may well be 'other factors' that are relevant to determining whether a case is an exceptional one.[50]
• [37] However, I consider, that there are limitations on how wide this net can be cast. 'Anything else' and 'other factors' must, in my view, be limited to matters that have been established by sufficiently cogent evidence before the Tribunal and are matters that are relevant to the issue of whether KBL's case is exceptional.
• [38] On a broad view there is a considerable overlap in matters that merit consideration under ss 226 and 228. This is because the Charge that KBL faced and much of the NTP material relates to DV matters.
• [39] To provide some structure to an evaluation of whether KBL's case is exceptional it is of assistance to summarise the submissions of the parties.
• [40] The Respondent contends that KBL's case is exceptional because the evidence raises the possibility of a risk to children. In extensive written submissions the Respondent, in summary, places particular emphasis on the following matters:

(a) Whilst acknowledging that KBL has not been convicted of any offence, the Respondent contends that there is compelling evidence before the Tribunal that lends veracity to the allegations that gave rise to the Charge; concerns were not mitigated at the hearing by the evidence of KBL. The Respondent points to the medical evidence that the injuries suffered by KBL's domestic partner (the complaint) were consistent with strangulation. In this context, the Respondent also submits that it is important to differentiate criminal liability from a suitability to work with children.

(b) That KBL did not call his domestic partner who, as is apparent from what is set out above, was involved in all the DV matters that were in evidence. Further, no witnesses were called from KBL's wider support network who may have been able to address the risk factors that the Respondent highlighted - such as the evidence that his arguments with his domestic partner would escalate when they were drinking alcohol[51] - had been addressed by behaviour modification.

(c) That an ability to judge appropriate behaviour, regulate emotions and exercise restraint and self-control are critical for adults working with children and young people in situations where interpersonal conflicts are likely to occur. The Respondent submits that the evidence, in relation to both the Charge and the DV information shows that KBL does not possess these qualities to the requisite level.

(d) That primacy should be given to the paramount principle and in so doing any detriment to KBL, such as a limitation on employment as a result of not holding a blue card, are not relevant to the Tribunal's consideration.

(e) As to the expert report of the Consulting Psychiatrist, the Respondent expresses reservations about the utility of the report on the basis that it relies significantly on KBL's self-reporting and that KBL omitted or mischaracterised matters that were necessary for the expert to provide a balanced report. In this regard, the Respondent places emphasis on the expert's incomplete knowledge of KBL's DV history and his concession that self-reported data has limitations.

(f) In summary, the Respondent submits the evidence shows that KBL's case is exceptional and that the object of the WWC Act and the principle that the welfare and best interests of a child are paramount support a precautionary approach to decision making in working with children applications.

• [41] As is set out above, KBL's contention is that his case is not exceptional. By way of reply to the Respondent's submissions, KBL, in summary, highlights the following matters as being of relevance to an evaluation by the Tribunal of the evidence:

(a) That the Charge was dismissed and that the conduct that gave rise to the Charge took place in August 2017 and there have been no further criminal charges since then. Further, KBL denies the allegations that gave rise to the Charge and asserts that he is entitled to the presumption of innocence.

(b) That the material gleaned from the police investigation does not make the allegations 'exceptional' and contends that the Respondent's reference to aspects of the criminal trial such as corroboration and motive amounts to nothing more than a 'where there is smoke there is fire' contention in respect of untested allegations.

(c) That the most recent DV Protection Order in which KBL was the respondent expired in January 2023 and that there was no evidence of any breaches during the currency of the order or the making of any further orders.

(d) That KBL now has insight into the conduct by him and his domestic partner that gave rise to their extensive DV history and that they now maintain a relationship which has benefited from the insights that KBL has acquired. I understand that this contention is based, at least in part, on the evidence that KBL has sought professional assistance from a psychologist that he consulted under a Mental Health Plan instigated by his GP[52] and a 'Men's Behaviour Change Counselling Program' conducted by Men & Co Services. KBL participated in this course in 2021.[53]

(e) That KBL holds a Yellow Card which was issued after an assessment of him by another government department and weight should be accorded to this assessment as it is in an area where the protection of the vulnerable is the primary assessment function.

(f) That the Respondent's submission that amounted to an invitation to draw an adverse inference from the fact that KBL's domestic partner did not give evidence should be rejected. KBL contends that this was unnecessary or inappropriate on the basis that the events that gave rise to the criminal charge took place in 2017, that KBL and his partner remain in an intact relationship, there is no relevant information that this person could give that is not before the Tribunal and, significantly, KBL's domestic partner has a history of mental health issues.

(g) The expert report and oral evidence of the Consultant Psychiatrist who undertook a detailed assessment of KBL should be accorded significant weight. Amongst other matters, KBL's submissions highlights that the expert witness subjected him to a violence risk assessment referred to as a 'HCR-20 assessment' and that KBL came up with low ratings 'in relation to both historical and more current or dynamic risk factors' for violent behaviour.[54] Further, KBL submits that the expert's findings that he 'does not exhibit a lack of insight into his potential propensity for aggressive behaviour' and 'does not exhibit signs of behavioural, affective or cognitive impulsivity'[55] should be accorded significant weight.

(h) Any supposed errors in the expert's report were not put to the witness to test whether they would change his opinion

• [42] Is KBL's case exceptional? KBL attended the University of Queensland in 1995 - 2000. He holds a degree in science from that University and engaged in some further study after obtaining that degree. Since leaving University KBL has had an extensive and varied career in a range of private sector enterprises. Broadly described his roles have been public facing in the health care sector.
• [43] KBL's career trajectory has been matched with long term domestic relationship. His evidence is that that he began a relationship in December 2010 with a person who, at the time of the hearing, was still his intimate domestic partner.
• [44] However, it would be incorrect to infer that the length of the relationship was accompanied by domestic harmony. The relationship has been marked with a couple of periods of separation, and it is KBL's evidence that his domestic partner has been diagnosed with post-traumatic stress disorder (PTSD) and depression which manifests in aggressive behaviour when triggered. In addition, KBL's evidence also refers to events of self-harm by his partner who also suffers from a presently incurable long-term health condition.
• [45] It is clear from the Charge and the DV information set out above, that KBL's relationship with his domestic partner has been tempestuous. It has been marked with violence by both parties to the relationship.
• [46] In an apparent recognition of the need for behavioural change, KBL undertook in 2021 a Men's Behaviour Change Counselling Program. This program consisted of some 19 areas related to DV. KBL attests to the aim of this program was to assist both victims and perpetrators of DV with a focus on risk management and safety. Although this is encouraging, the substantial details of this course were not in evidence nor was there any independent evidence that the course had brought about behaviour change in KBL. It is the case that there was no evidence of criminal charges since the dismissal of the Charge in 2018 nor of post 2018 DV information. Whilst this is welcome, I do not regard this as a prime factor in considering whether KBL's case is exceptional, given that it is no more than what is expected of all members of society.
• [47] Whilst I consider that KBL has made commendable efforts to address the manifest problems that he faced and, in particular, the DV in his relationship with his domestic partner I have concluded that KBL's case is exceptional.
• [48] The principal basis on which I have come to the decision that KBL's case is exceptional is the repeated violence in his domestic relationship. Whilst I appreciate that KBL was the subject of DV he was also a perpetrator. In this regard I consider that KBL's conduct, as revealed by the evidence in this matter, raises the possibility of a risk to children should KBL hold a blue card. Given the objects of the WWC Act and the paramount principle enshrined in the Act it is appropriate to apply a precautionary approach.
• [49] In coming to this decision, I have taken into account the generally positive assessment of the expert Consulting Psychiatrist. Further, I have also considered the competing human rights that are relevant to my decision. For KBL I have considered his right to privacy and reputation,[56] the right to a fair hearing,[57] and the right to take part in public life.[58] However, I consider that the right of every child to protection is of paramount importance under the WWC Act and therefore any limitation of KBL's human rights is justified.

• [50] On 8 September 2022, prior to the hearing of this matter, the Tribunal made a non-publication order. This order prohibited the publication of certain material to the extent that it could identify or lead to the identification of KBL, any family member of KBL, any child, or any non-party to the proceedings, save as is necessary for the parties to engage in and progress the proceeding.
• [51] The statutory power to make a non-publication order is contained in s 66 of the QCAT Act. The Tribunal's power is discretionary.
• [52] I consider that it is appropriate to continue the non-publication order on the basis that it would be contrary to the public interest for the identity of the Applicant (and thus the identity of his domestic partner) to be published. In making this order I have taken into account the Applicant's evidence that his domestic partner has been diagnosed with PTSD and depression.

In addition to a non-publication order, the decision of this Tribunal is that the decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is "exceptional" within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

[1] A copy of the Reasons Document forms part of exhibit 1.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[3] Oliver v Queensland Racing Integrity Commission [2017] QCAT 50, [11].

[9] Oliver v Queensland Racing Integrity Commission [2017] QCAT 50, [11].

[12] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]-[35].

[14] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [42].

[17] Johnston v Carroll [2024] QSC 2, [65]-[77].

[22] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].

[23] Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [19].

[28] The NTPs were issued pursuant to decisions made by the Tribunal on 27 April 2022. The NTP documents became exhibit 2.

[32] Exhibits 5 and 6. These orders did not form part of the DV documents produced pursuant to the NTPs.

[40] Exhibit 3 at paragraph 70 and exhibit 5.

[42] Exhibit 3at paragraph 70 and exhibit 6.

[44] See also WWC Act s 228(2)(e) which requires the Tribunal to consider, in respect of 'other information' the length of time that has passed since the conduct that gave rise to the criminal charges.

[50] Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [16].